“We want to ensure that these crimes don’t pay.”

Michael Caplan QC, Sentencing Council Member

In an era where price fixing and anti-competitive practices attract fines measured in billions, the disparity associated with sentencing for safety offences has never been more evident. During 2014, we have seen attempts by the Courts to increase levels of fines and now those attempts receive the support of the Sentencing Council, which has just published draft guidelines. If the guidelines are implemented as currently drafted, we expect to see fines increasing dramatically – sending a message to all organisations, and individuals, of the importance of compliance. A copy of the Draft Guidelines can be found here.

Whilst there are calls for fines to increase, there are also calls for consistency of those fines, at whatever level. Attempts to impose tariffs on the Courts have been rejected, and suggestions from defence practitioners that past sentencing decisions may be of assistance to the Court are often rebuffed as not having any binding authority. This has garnered unpredictability when dealing with sentencing for food safety and hygiene offences; what might be an appropriate fine in one Court, may not necessarily be considered so elsewhere in the country.

The primary aim of the guidelines is “to ensure that all sentences are proportionate to the offence committed and in relation to other offences.” We believe that the latter half of that ambition will be the most difficult to achieve, and will not be achieved within the guidelines as currently drafted: it is far from clear whether the new guidelines will achieve any more consistency than we have at present.

The background

The draft guidelines cover sentencing for corporate manslaughter, health and safety and food safety and hygiene offences. They are very similar to those used by the Courts when sentencing more typical ‘criminal’ offences such as burglary and theft, using a step by step approach. The format of the guidelines, and the methodical way sentencing is approached, also echoes the Environmental Sentencing Guidelines published earlier this year.

The consultation process commenced on 13 November 2014 and ends on 18 February 2015. Anyone wishing to contribute can do so here. We will also be gathering comments from our clients with a view to providing our own response to the Consultation and are interested to hear your views, particularly if there are aspects you would wish to raise anonymously.

“Our proposals will help ensure a consistent approach to sentencing, allowing fair and proportionate sentences across the board, with some of the most serious offenders facing tougher penalties.”

Michael Caplan QC, Sentencing Council Member

Why the change?

The new document was thought necessary because:

  • Those involved in the sentencing exercise expressed a lack of familiarity with sentencing the offences, compared to more ‘typical’ criminal offences that regularly pass through the Courts;
  • There were inconsistencies found in how sentencing decisions were reached across the country; and
  • There were concerns that sentencing was too low for some larger organisations.

None of the issues highlighted above should be seen as ‘new’. They have, arguably, existed for decades and were actually improving as Courts became more familiar with compliance cases and limited sentencing guidance became available.

There were, however, three more specific reasons cited as drivers for change:

  • To highlight the sentencing principles addressed in recent health and safety cases, where we have seen higher fines for what may be considered as ‘lesser’ offences;
  • To ensure consistency with the Environmental Sentencing Guidelines published in February 2014; and
  • To assist Magistrates when, as expected, they are given the power to impose unlimited fines for some offences.

What do the guidelines require for food safety and hygiene offences?

The first point to note is that the Sentencing Council has focused on the most commonly prosecuted offences and those concerned with risks to health. The guidelines focus on the offences created by placing unsafe food on the market and the hygiene provisions set out in European legislation. The guidelines do not consider offences under the Food Safety Act 1990, largely because relatively few prosecutions are brought for offences committed under this Act.

The Courts are required to consider the seriousness of the offence, and the means of the offender. This is then used to determine the range of fine that should be imposed. This exercise has always been performed by the Courts, but the guidelines attempt to put this on a more formal footing.

‘Rate’ the offence

The offence can be rated by reference to two indicators: ‘harm’ and ‘culpability’.

The ‘culpability’ of the offence will depend on the extent to which the offender failed to meet the standards required of them, ranging from deliberate breaches of the law, down to minor or non-systemic failings.

The ‘harm’ associated with the offence will initially be based on the ‘risk’ of harm created, rather than the ‘actual’ harm. This approach is said to assist regulators who want to intervene before actual harm is caused. If there has been actual harm, however, the offence may nonetheless be viewed more seriously.

The assessment of harm does not include death but rather the risk to human health. This is because death is a relatively rare consequence of food safety and hygiene offences. The consultation notes that where death is a consequence the courts should go beyond the provisions set out in the guidelines.

The guidelines recognise that these offences are not all focused on matters of health. Where there are more ‘procedural’ offences being considered, the harm may be one of ‘undermining the regulator’ or ‘undercutting legitimate operators’. The guidelines also acknowledge ‘harm’ where the public have been misled about specific food consumed, even if health has not been affected. The culmination of the guidelines’ approach to ‘harm’ is captured within three ‘ratings’ of harm:

Category 1: Serious adverse impact on human health.

Category 2: Includes where there is a high risk to human health, as well as procedural offences.

Category 3: Includes where there is medium or low risk to health and where the public has been misled.

Whilst the guidance on harm and culpability is clearer than before, it may still fail to encourage consistency. By way of example, the distinction between “falling far short” (highly culpable) and “falling short” (medium culpability) may be a fine one, and could be interpreted differently by different Courts and prosecutors. The same could be said of the difference between “serious, systemic failings” (highly culpable) and mere “systemic failings” (medium culpability). If there is any discrepancy in the approach to culpability, which we submit is a real risk, then consistency will be lost from the outset. The consequences can be very pronounced in terms of the applicable starting point then applied.

‘Rate’ the offender

For organisations, the guidelines focus on turnover in order to separate different offenders. Four formal categories of offender are proposed:

  • Micro organisation: up to £2 million;
  • Small organisation: between £2 million and £10 million;
  • Medium organisation: between £10 million and £50 million; and
  • Large organisation: £50 million and over.

In addition, the guidelines envisage that there will be ‘very large’ organisations, where the guideline sentences may need to be increased in order to achieve a proportionate sentence.

The guidelines accept the limitations in using turnover as a marker for a company’s financial health, and still require the Court to: “examine the financial circumstances of the offender in the round to assess the economic realities of the organisation and the most efficacious way of giving effect to the purposes of sentencing”. Again, turnover could have been used as a very neutral measuring stick for organisations, but the guidelines have had to acknowledge the weakness in that approach and have invited discretion into the assessment.

Once the ‘harm’ and ‘culpability’ have been rated, the guidelines provide a sentencing matrix, depending on the size of the organisation being sentenced. Each matrix provides a fine ‘starting point’ and a ‘category range’ for each offence category.

Using a large organisation as an example, the starting point for the most serious offence is £1.2 million, with a range between £500,000 and £3 million. At the lowest end of the offending spectrum, the starting figure is £10,000 with a range between £9,000 and £25,000.

Reverting back to the traditional approach

Once the starting points and ranges have been established by the Court under the draft guidelines, the normal sentencing process would then resume. There will be an assessment of the aggravating and mitigating features of the case in order to determine where the fine should sit within the suggested range.

There will also be assessments of the means of the offender to pay, and the potential impact a fine may have on members of the public (for public bodies/services) and employees of the offender. As is the case currently, the guidelines are explicit that certain fines may be so large as to put an organisation out of business, but in some cases that may well be perfectly justified.

For this part of the sentencing process, very little will change. For that reason, the inconsistency associated with the current sentencing regime will remain. How does one Court acknowledge a particular mitigating factor (in terms of a reduction of fine) compared to another Court? There is no requirement to ensure that the reduction is equal and no-one will be able to quantify precisely what discounts should be awarded.

What does it all mean?

For now, nothing. The consultation is ongoing until 18 February 2015, but the guidelines will be implemented in some form. Assuming that the guidelines are not drastically changed, we will likely see much higher fines being imposed by the Courts.

Whether we will see consistency, is up for debate. The Regulator treats every food safety or hygiene incident separately, considering the facts of the case and whether prosecution is warranted. A ‘one size fits all’ approach would not work in the realm of enforcement, and it is equally awkward in the sentencing exercise.